2004 PLP 1318 (CLD)

MUHAMMAD AKHTAR SHABBIR, J.‑‑‑This appeal arises out of the order dated 23‑1‑2003 passed by Judge Banking Court‑1, Faisalabad dismissing the objection petition of the appellant and confirming the sale in favour of respondent No.2.

2. The facts giving rise to the present appeal in brief are that the plaintiff‑Bank/ Decree-holder had instituted a suit against the appellant/judgment‑debtor for the recovery of an amount of Rs.9,21,146 due to the appellant as on 21‑3‑2000 along with liquidating damages @ 20 % per annum and future mark‑up till final liquidation of the liability. The suit was decreed against the appellant vide ex parte judgment and decree dated 17‑10‑2001 with costs.

3. The above said ex parte decree was converted into Execution Petition and the Executing Court, issued notice to the appellant/judgment‑debtor tinder Order XXI, rule 66 C.P.C. vide, order dated 22‑11‑2001 for the auction of the mortgaged property of the judgment‑debtor‑appellant. In response to the notice the judgment‑debtor‑appellant filed an application in the said Court for setting aside the ex parte decree which too was dismissed by the Executing Court, vide, order dated 11‑2‑2002 and directed to sell the property of the appellant through public auction and by order dated 26‑3‑2002 appointed the Court Auctioneer for auction of the property. The Court Auctioneer submitted his auction report averring therein that the property of the judgment‑debtor has been sold out for a consideration of Rs.4,27,000.

4. The appellant filed an objection petition against the auction of his property on 3‑8‑2002 and the Executing Court after hearing the objections of the parties dismissed the same, vide impugned order, which prompted the appellant to file the instant appeal.

5. Learned counsel for the appellant has contended that notice under Order XXI rule, 66 C.P.C. has not been issued to the judgment‑debtor before the auction of the property. Further contended that the Court had directed the publication of the sale through `Daily Business Report Faisalabad while it was published in the `Daily Soorat‑i‑Hall, Faisalabad'. Also contended that reserve price of the property was lesser. It is further contended that the auction proceedings conducted by the Court Auctioneer were fraudulent, hence are a nullity in the eye of law and liable to be set aside. He has, relied upon the case of Brig. (Rtd.) Mazhar‑ul‑Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lahore 706 and Messrs National Electric Company of Pakistan v. Allied Bank of Pakistan Ltd. and 2 others 1996 CLC 192.

6. On the other hand, learned counsel for the auction purchaser has vehemently opposed the argument of learned counsel for the appellant and supported the order passed by the Executing Court by contending that all the requirements of law were performed by the Executing Court and the Court Auctioneer. Further contended that the publication of auction of the property in `Daily Soorat‑i‑Hall Faisalabad' instead of `Daily. Business Report Faisalabad is not an illegality which could vitiate the auction proceedings.

7. We have heard the learned counsel for the parties at length and examined the record.

8. The Executing Court on 22‑11‑2001 passed the order to sell the property of the judgment‑debtor/appellant through open auction after issuing notice to the decree‑holder and the judgment‑debtor under Order XXI, rule 66, C.P.C, and on 21‑12‑2001, the judgment‑debtor in response thereto, filed an application for setting aside the ex parte decree passed by the trial Court which is sufficient proof of the fact that the requirement of Order XXI, rule 66 ibid has been performed by the Executing Court. The said application was dismissed by the Court on 11‑2‑2002 when the learned counsel for the parties were present. On 26‑3‑2002, a further direction was passed by the Court to furnish the schedule for sale of the mortgaged property through public auction. The Court Auctioneer in compliance with the order of the Court got issued the publication through `Daily. Soorat‑i‑Hall Faisalabad'. Though it was not published in `Daily Business Report' Faisalabad' but the change of the publication in the newspaper by the Court Auctioneer is not an illegality. The purpose to bring the auction of the property to the knowledge of the public in general has been achieved. From the perusal of the report of the Court Auctioneer it reveals that about eleven persons were present and out of these three had deposited the amount to participate in the auction and the auction purchaser was the highest bidder.

9. The judgment‑debtor had mortgaged the property i.e. Shops bearing Khata No. 165, Khasra No.638/2 measuring 1 Marla 133 Sqr. ft. situated in Mauza Civil Station, Tehsil and District Jhang description of which had been mentioned by the Court Auctioneer in the publication notice through `Daily Soorat‑i‑Hall Faisalabad'. The auction and reserve sale price in the schedule of auction Rs.4,25,000 was also mentioned therein. But the property had been auctioned at a price more than the reserve price.

10. The learned Executing Court had rightly rejected the objection petition of the appellant as the fraud in auction I proceedings had not been discernible from such proceedings nor any such fraud had been committed in holding the auction nor the Executing Court had gone outside the limits prescribed by law. In this context reliance can be made to the case of Syed Munir Hussain Gilani v. Habib Bank Limited, Township Branch Lahore and another 2002 CLD

315. The Court Auctioneer not only issued publication in the newspaper but also affixed publication notice at different conspicuous places of the vicinity as is evident from the copy of the publication of auction available on the file of the Executing Court. So much so, the notice was also sent through registered post to the decree holder as well judgment‑debtor, photocopy of the said notice, registered A.D along with postal receipts are available on pages Nos. 120 to 125 of the said file.

11. From the above facts, we find that the Executing Court as well as the Court Auctioneer have performed all the legal requirements of relevant provision of law to conduct the auction of the mortgaged property.

12. There is no doubt that the Court Auctioneer under the directions of the Court and in accordance with the prescribed procedure of law conducted tie, auction. We find that the case law referred to above by‑the‑learned counsel for the appellant is not applicable, on all the fours of the present case. Learned counsel for the appellant has not been able to persuade us to interfere with the impugned order.

13. For the foregoing reasons, we find no force in this appeal, which is hereby dismissed. M.A.W./K‑2/L Appeal dismissed.